02 Mar 2008 |
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Sunday Musings: The Ogebe Ruling, the Measure of (Substantial) Non-Compliance – and a Missed Opportunity By Mobolaji Aluko Burtonsville, MD, USA March 2 , 2008
INTRODUCTION Despite Presidential Petition Tribunal Chairman Ogenyi Ogebe's absence from the bench on Judgment Day February 26, 2008, this ruling shall be referred to as the Ogebe Ruling for eternity. It is the worst election-related ruling in Nigeria's history, and has the singular dishonor of accompanying the worst set of elections ever in Nigeria's history - those superintended in April 2007 by Dr. Maurice Iwu. It trumps the "12 is 2.3rd of 19" debacle of 1979, ascribed more to the NPN lawyer Richard Akinjide who proffered that disingenuous argument to the Justice Kazeem and his Petition Tribunal team. The extreme partisan, on reading my characterization of the Ogebe Ruling as worst-ever will probably cry "Foul!", stating that it was because the ruling did not go my way, that is why I decry it. Absolutely not. Rather, it is the abysmal lack of remorse which the ruling showed despite a welter of flaws recorded by international and domestic observers and admitted even by Umar Musa Yar'Adua himself; the mocking levity and lack of majesty with which it was delivered; and the implications of the ruling for the remaining petition tribunals for the current election cycle; and most importantly the implication for future elections in Nigeria, eg 2011, that give one palpitations out of fear for the future of democracy in our dear country.
THE BASIS OFOUR ANGST – "MINIATURE COMPLAINTS" Let us provide three examples which the Ruling characterized as violations and/or "miniature complaints." of the petitioners. First, to wipe out 95% of petitioner General Muhammadu Buhari's witnesses because of a procedural violation (swearing on oath over depositions before a lawful Notary Public who was in the employment of petitioner), while minimizing the non-swearing of oath of possibly tens of thousands of electoral officers is unconscionable. From twenty-one witnesses, Buhari was left with just two witnesses, both of which were deemed by the court to have inconsequential evidence to offer.. Secondly, to admit there was indeed "substantial violation of the Electoral Act" due to non-serialization and perforation of the tens of millions of ballot papers, and yet to minimize the possible effect of this illegal omission on the election results is patently absurd. Thirdly – and finally - what about Atiku Abubakar's technical exclusion from the elections, being forced on the ballot only five days before the Presidential Election of April 21 by a Supreme Court injunction? Or his being disallowed from public campaigning following an Inspector General of Police' banning of rallies? Or this: Prior to that forced inclusion, the party logos, names and faces of presidential candidates were announced to be included in the ballot, and sample ballots loudly displayed. After the Supreme Court ruling requiring Atiku's inclusion, the names and faces were dropped. The Ogebe Ruling observed that there was indeed evidence of "an attempt to set up barriers to Atiku's candidacy between the nomination date and April 16….which should not be". The ruling also kept mute over the clear violation of the Electoral Act which requires a minimum of thirty days and a maximum of one-hundred-and-twenty days for a candidate to be published PRIOR to the Election Day. How then could the Panel Judges proceed to jokingly dismiss all of these observation as "miniature complaints"?
THE NEBULOUS NOTION OF SUBSTANTIAL NON-COMPLIANCE The legal basis for all of these dismissals was that there was no evidence that these "miniature complaints" amounted on aggregate to "substantial non-compliance" But of what? It could not be of the Electoral Act, since the Judges themselves had admitted clear violations, at least with respect of the non-serialization and bias shown in "attempting" to exclude Atiku. More importantly, what really then is the STANDARD or MEASURE of this non-compliance? What makes a particular non-compliance SUBSTANTIAL and another NON-SUBSTANTIAL? Are we talking of a binary digital measure here – 0 or 1 – or a continuous measure – 0% to 100%? For it to be binary, it could ONLY be if the substantial non-compliance is with respect to some predetermined election outcome, absent these complaints. That is: we expected Yar'Adua to win. He won. So what is the problem? This of course is the Party line of the PDP, and of those who argue without proof that Buhari and Atiku could not have beaten Yar'Adua in the April 2007 elections – as if they were diviners. If that were the case, why then did we need to waste time and money and effort going through the motion of elections? Why don't we just poll the diviners and decide the winner from their majority? Or is it a continuous measure? If it is, then the only criteria that I see are two: - Measure 1: the number of polling stations in the country was purportedly 120,000. If you have provable evidence of rigging in no polling station at all, you score 0%, if in all, you score 100%. In between, you get a score accordingly, by dividing by 1200.. - Measure 2: the number of ballot papers used in the country was purportedly 65 million (total ballots) or 36 million (ballots cast).. If you have no provable evidence of rigging in any of the ballot papers, you score 0%; if in all you score 100%. In between, you get a score, by dividing by 650,000 or 360,000 as the case may be.. Similar measures might be concocted for legislative and state elections, depending on jurisdiction. So as far as the Justices are concerned, if a continuous measure is to be used, what are the grades for A, B, C, D and F here? 90 and above, 80, 70, 60, 50 and below respectively? And is C and below in ANY ONE of the measures what they term substantial non-compliance – or is it in BOTH measures above? Inquiring minds want to know. The Justices need to let the Nigerian people know, otherwise this nebulous concept of substantial non-compliance is subject to gratuitous and egregious capriciousness in all rulings, and is capable of destroying Nigeria's electoral democracy for ever. Never mind the notion that a particular ruling can be REVERSED in higher court, yet such reversal in itself can equally be egregious capricious in the absence of objective standards and measures.
IMPLICATIONS FOR FUTURE ELECTIONS I submit that a careful reading of
the Ogebe Ruling is an open manual for those who would rig elections in the
future even more than what we had in 2007 – as if that were possible. Ayo
Obe has recently rightly called it "A Charter for Dishonest
Elections." http://www.nigerianmuse.com
Take the issue of non-swearing by INEC officials. If ANY refusal to swear by an INEC official has no consequences, why does ANY INEC official have to swear at all? Suppose ALL 500,000 of them refuse to swear, then what? Why do we have that requirement in the Electoral Act at all if its violation can be so easily dismissed by the wave of a hand? Or take the issue of non-serialization of ballot papers. In short, these ballot papers were ILLEGAL, period, no question about it, as what constitutes a ballot paper is CLEARLY spelt out in the Electoral Act 2006.. This time around, the Atiku exclusion episode was the reason for the emergency, but what prevents a deliberate delay of funds to be the reason for the next cycle? Taking it further: What then prevents a local Electoral Commissioner, arguing from expediency – eg that the official ballots did not arrive on time from Abuja – from contacting a local printer in Ado-Ekiti to print any set of ballot papers and then proceeding to administer the same in the Ekiti portion of the elections? [I read an essayist Michael
Egbejumi-David recently ask pointedly whether the lack of serial numbers on our
currency can now be used to discredit him when he decides to spend some of
it.. Go figure. http://www.nigerianmuse.com
Finally, what about the exclusion of Atiku? Curiously, the Electoral Act allows the CONSIDERATION of postponement of elections in the event that a candidate dies within a stipulated time – apparently a device to dissuade deliberate assassination of co-candidates by others. However, suppose we have a situation in which a candidate is KIDNAPPED and held INCOMMUNICADO from the day of his nomination to just four to five days to the election, only to be released then. Would that not be a serious violation of the Electoral Law - an exclusion as it were? It is for the above reasons, and more, that I consider this Ogebe Ruling a legal howler, which must be tested – and hopefully upturned – at the Supreme Court, otherwise we are in serious trouble as a country.
A MISSED OPPORTUNITY All that could go wrong in any election went wrong: unlawful exclusion of candidates; wrong or missing names, logos and pictures on ballots; delayed ballot arrival; no ballot arrivals at all and hence no voting; thuggery; use of army and police in thumb-printing and beating up of opponents; ballot stuffing; missing or altered election result sheets; corrupt announcement of wrong results; etc., etc. Just think of it, name it, and all went wrong as observed by international and domestic monitors. Consequently, uneasiness with the seriously flawed elections which brought Yar'Adua was profound among many Nigerians. Nevertheless, speaking with
hundreds of Nigerians since the April 2007 elections, I have been impressed
with the happiness that has attended the disappearance of the fractious years of
Obasanjo administration, years of haranguing the nation and a boorish approach
to governance populated by presidential-aides-as-loudmouth
Thus many Nigerians that I have spoken to would actually want Yar'Adua to continue in office, but would not admit it openly out of a fear of accusation of "anti-party activities." Nevertheless, they had hoped that the Ogebe Ruling would SOMEHOW be far more balanced than it was – and not as UNHINGED as it really is – and somehow graciously give Yar'Adua more conciliatory wiggle-room among the opposition to maneouver himself into their hearts. All the above makes the Ogebe Ruling more jarring. This is because the notion now fostered by the ruling is that those elections were near perfect, and that it is only a lazy opposition and its allegedly incompetent counsels that could not prove its case. What does that conclusion then make of the much-touted Electoral Reforms which Yar'Adua is attempting to foist on the nation? Are those now not superfluous, and should his Electoral Reforms Committee not be disbanded? The opportunity to give Yar'Adua more wiggle-room has now been lost, because of the simple arrogance and in-your-face judgment which has been simply atrocious. The impunity is galling. Events leading up to the judgment, particularly the elevation of Justice Ogenyi Ogebe to the Supreme Court, also simply exposed Yar'Adua as just another political operative who would do anything necessary – you remember the do-or-die mentality - to remain in power. Before all of these happenings, that was NOT the Yar'Adua that many knew. After these happenings, his virgin innocence has now disappeared. Only the Supreme Court can sew it back. Finally, it is clear that Raila Odinga's party's refusal to go to court after the daylight election robbery in Kenya was wise, for it has now forced a major rapprochement between the Mwai Kibaki and Raila Odinga in a new power-sharing agreement negotiated under the watchful eyes of Kofi Annan.. Our own Election Petition Tribunal ruling indicates that when it matters most, fair judgment may not be expected, and if care is not taken, people may in future take matters in their hands in a manner reminiscent of Kenya's post-election killing fields. We pray not.
Bibliography THURSDAY ESSAY: - Now That I am Fairly Recovered from the Presidential Petition Tribunal Ruling of February 26......, By Bolaji Aluko
SATURDAY ESSAY - Why Nigeria's 2007 Presidential Election will be Canceled on Super-Tuesday – Or Should Be, by Bolaji Aluko
TUESDAY ESSAY - On Today's Prononuncement of the Presidential Petition Panel For Yar'Adua/Jonathan and Against Buhari/Atiku - Some Quick First Impressions, by Bolaji Aluko
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